84 P. 389 | Or. | 1906
Lead Opinion
delivered the opinion of the court.
This is an action by Eliza Carroll, as administratrix of the estate of her son Leonard Carroll; deceased, against the Grande Ronde Electric Co., a' private corporation, to recover damages resulting from his death, which is alleged to have been caused by its negligence in constructing lines of electric wires and in failing to repair such wires when broken. The answer denies the material averments of the complaint, and, for a further defense, alleges that Carroll’s death ensued from his own carelessness. The allegations of new matter in the answer were put in issue by the reply, and at the trial, the plaintiff having introduced her testimony and rested, the court, on motion of defendant’s counsel, gave a judgment of nonsuit, and she appeals.’
The bill of exceptions shows that the defendant operates at Cove a power plant, where it generates electricity, which is transmitted on overhead wires 17 miles westerly to La Grande at a pressure of 23,500 volts, and by a branch from the main line, starting at a point about five miles from Cove, is carried a current at the same voltage southerly eight miles to Hot Lake and supplied from substations at both termini to customers who use it for light, heat or power. The injury complained of occurred on the branch line where it runs south on the west side of a public highway extending through the farm of Prank Hempe. This line consists of three uninsulated wires, one of which is suspended from the tops of poles about 30 feet high, set about 125 feet apart, and the other wires are attached, each to the end of cross-arms fastened to such poles near the top. A very severe wind, arising Sunday, August 27,1905, at about four o’clock in the afternoon, blew a green limb from a tree growing on Hempe’s land across the wires,
Leonard Carroll, who was 24 years old, was working in August, 1905, for Hempe as a farm laborer. He was not at the home of his employer, however, when the wires fell ; but, returning that evening, he ate supper with the family and also breakfast the next morning, at which meals the dangerous condition of the wires was freely commented upon, the several shocks received therefrom were adverted to, and at breakfast Hempe, in his hearing, warned the persons participating in the repast to keep away from the broken wires, as by approaching them they might be
George Hempe, as plaintiff’s witness, testified that he was present when the wires were.fastened to the fence, but his back was turned when Minnick received the shock, though hearing him holloa, and the witness turned as he fell, and that on the morning of August 28, 1905, he discussed with Carroll the danger of the broken wires. On cross-examination George stated that he told Carroll about Min-nick’s getting shocked and knocked down, whereupon defendant’s counsel, referring thereto, inquired: “Did you tell him he put his hand up toward the wire and there was a blaze came out to him, and that is the way he got it ?” To which the witness replied: “Yes, I think I told him something to that effect.” Referring to the manner in which Carroll was injured, the witness was further asked on cross-examination :
“Isn’t it a fact that he went up and took hold of the picket there and stuck his finger out in that way?”
“Well, when he took hold of the picket, he reached out and took hold of it like that, and these three fingers closed while the other extended.
Q,. Extended out towards the wire?
A. Yes. * *
Q,. Well, now, did his hand come in contact with the wire ?
A. I don’t think it did. The last time I saw it before the blaze started, it was probably about eight inches from the wire, and after the blaze started I could not say. * *
Q. As a matter of fact, from where he took hold of that picket here, his finger — his forefinger of his left hand — was pointed directly towards the wire, wasn’t it ?
A. Yes.”
Frank Hempe, as plaintiff’s witness, testified that he was not at home when the wires burned, off, but that he returned that night about 8 o’clock. In referring to the broken wires at that hour, plaintiff’s counsel inquired:
“What did you see about that?”
And the witness answered:
“Well, they were sparking and I cautioned the people that they were dangerous and to keep away from those wires. * #
Q. You saw the wires?
A. I didn’t see any wire. I saw the fire and sparks. I didn’t see any wire. I thought it was dangerous.”
On cross-examination, defendant’s counsel, referring to Monday, August 28, 1905, inquired:
“I will ask you to state whether or not, at the breakfast table that morning, when Mr. Leonard Carroll was present and your son George, that you said to all of those parties to stay away from that wire; that it was extremely dangerous, and they might get killed ?” To which he replied: “Yes.”
Mrs. Frank Hempe, as plaintiff’s witness, testified, on cross-examination, that Leonard Carroll took supper with her family Sunday evening, August 27, 1905, when the
“1 said the best thing to do was to keep away from that wire.
Q. Mr. Leonard Carroll was there at that time ?
A. Yes.
Q. Was that at the breakfast table or the supper table ?
A. Breakfast table.
Q. Well, these matters were talked — were made a matter of general conversation — were they not, between the parties at the supper table and breakfast table ?
A. Yes.
Q. And to what extent Mr. Minnick had got hurt-?
A. Yes.
Q,. And that it was fortunate that he didn’t get killed and matters of that kind?
A. Yes.
Q,. And it was discussed how dangerous it would be if a person happened to get near the wire, if it happened to be charged with electricity? That was all talked, wasn’t it, Mrs. Hempe ?
A. Yes.”
Though no testimony was introduced on the part of the defendant, the answer states facts which were evidently relied upon to excuse the delay in failing to discover the break in the wires, so that it might sooner have been repaired. That pleading details the manner in which the defendant’s station, substations, and transmission lines are constructed, maintained and operated, and avers that the power plant, at the time of the wind storm adverted to,
In Anderson v. Jersey City Elec. Light Co., 64 N. J. Law, 665 (46 Atl. 593, 48 L. R. A. 616, 81 Am. St. Rep. 504), the plaintiff, desiring to convince a companion that an electric wire was so insulated that no injury could result to a person by coming in contact with it, deliberately touched the wire to make the demonstration, when he received a severe shock, seriously injuring him. In an action to recover the damages sustained, a judgment of nonsuit was rendered, in affirming which, Mr. Justice Gummere, referring to the plaintiff, says: “He knew that the wire might be dangerous if the insulation was not perfect, and, having voluntarily assumed the risk of injury in order to vindicate the soundness of his judgment, he has no one but himself to blame for the consequences which followed.” So, too, in Wood v. Diamond Elec. Co., 185 Pa. 529 (39 Atl. 1111), a person háving been killed by coming in contact with,a wire screen charged with electricity, which screen was used to protect glass in a photographic gallery from breaking, the plaintiff’s intestate, to demonstrate to the multitude assembled in consequence of the death, that the shield was not laden with electricity, voluntarily touched it, causing his death also. An action having been instituted to recover damages sustained by reason of the latter’s death, a judgment of nonsuit was given, in refusing to remove which the court on appeal say: “We'find nothing in the evidence tending to prove that the proximate cause of the death of plaintiff’s husband was the defendant company’s negligence. On the contrary, it clearly appears that his death was the result of his own voluntary, deliberate act in touching the screen heavily charged with electricity, in the face of ample notice
It will be remembered that Frank Hempe testified that, when he returned Sunday, August 27, 1905, at about 8 o’clock in the evening, he discovered that the broken wires were emitting sparks. His declaration in this respect contradicts the averment of the answer that the electric current was not turned on until about 12 o’clock that night. It will also be kept in mind that this witness, on Monday morning, in the presence of Carroll, warned all persons at the breakfast table to keep away from the broken wires, saying they were extremely dangerous, and that by coming in contact with them death might ensue. Mrs. Hempe, also, in Carroll’s hearing, reiterated the warning. It must be assumed that Carroll knew that, if he approached the broken wires, so as to come in contact with them, danger was imminent. Though Carroll was not present when the wires burned off Sunday evening, he must have known the manner in which Minnick received the shock that prostrated him on that occasion, for George Hempe testified that he told Carroll that Minnick put his hand out towards the wire. Notwithstanding Carroll’s knowledge of the dangerous condition of the broken wires, and the warnings given by Mr. and Mrs. Hempe to keep away from the place where he was injured, he evidently concluded to make the same experiment that Minnick tried, and, in doing so, he was killed.
It will be borne in mind that Carroll was 24 years old at the time he received the fatal shock, and his age precludes the application of the prevailing rule as to the liability of railroads for injuries sustained by children while playing on turntables, or fur hurts sustained by persons of immature years from other instrumentalities which they, by the carelessness of others,' are permitted to approach. Carroll probably did not know that the wires transmitted such a high voltage of electricity. He had
We think his act in this respect shows such contributory negligence as to prevent a recovery of the damages sustained, and hence the judgment is affirmed.
Affirmed.
Rehearing
Decided 27 February, 1906.
On Motion for Rehearing.
delivered the opinion of the court.
In a petition for a rehearing, plaintiff’s counsel, invoking the rule that on a motion for a judgment of non-suit all reasonable presumptions and every legitimate inference that can arise from the evidence should be invoked in favor of the party bringing the action, so as to carry the case to the jury, insist that this court, in reviewing the testimony given at the trial, improperly considered parts thereof and omitted other material parts to the injury of their client. The principal' objection is made to a statement contained in the opinion to the effect that Leonard Carroll pointed his finger at the wire when he was killed. ■
“You say he took hold of one of the pickets with his left hand?” Hempe answered: “Yes.
Q,. About what distance was it back where he took hold of the picket from the end of the wire that was hanging on the picket?
A. Well, I think it was about two feet or thereabouts.
■ Q,. Then how far was the wire that was suspended along in front of the pickets ? How far in front of his hand was the body of the wire along there, if you know ? How close was his hand to it?
A. Well, probably about eight inches from the wire.
Q,. In other words, the wire just passed by his hand towards the end of it?
A. Yes.
Q,. Where were you testing it with the stick ?
A. At the end of the wire.
Q. And he was standing at the north side of you was he?
A. Yes.”
The upper end of a picket, cut from the fence above the top stringer and supposed to be the one Carroll grasped,' was identified by the witness, offered in evidence, and sent
Defendant’s counsel, referring to the manner in which Carroll was injured, inquired :
“Isn’t it a fact that he went up and took hold of the picket there and stuck his finger out in that way? '
A. Well, when he took hold of the picket he reached out and took hold of it like that, and these three fingers closed while the other extended.
Q,. Extended out towards the wire?
A. Yes.
Q,. Now, when you saw that finger sticking out there, at that instant you saw the flash from the wire to his finger, didn’t you ?
A. Yes — not at that instant exactly, but a very short time until the electricity made the circuit. * *
Q. When he took hold of the picket, was he turned looking towards you, or which way was he looking?
A. He was looking almost straight ahead of him, I should think. * *
Q,. Well, now, did his hand come in contact with the wire ?
A. I don’t think it did. The last time I saw it before the blaze started, it was probably about eight inches from the wire, and after the blaze started I could not say.
Q. You don’t know whether his hand came in contact with the wire or not ?
A. I don’t know. It didn’t before the current started, and after the current started I could not say, there was such a bright blaze.
Q. Now, George, isn’t it a fact, that he walked up there, and, when you were testing that matter, stepped across the ditch and simply reached out his hand towards that wire, and received that shock? Isn’t that a fact, Goorge?
A. No, sir; he put his left hand on the fence.
Q,. And stuck his finger out towards it this way ? That •is the way he did it, didn’t he?
A. I can show you with the picket.
Q,. Didn’t he point his finger out towards the wire?
*441 A. That finger never closed. The other three fingers closed on the picket, and the fourth finger extended.
Q,. Now, don’t you know, as a matter of fa-ct, that he was pointing his finger at the wire ?
A. No, I don’t know it.
Q,. Well, why do you say then that he didn’t point his finger at the wire ?
A. I didn’t say exactly that he didn’t point his finger at the wire.
Q. As a matter of fact, from where he took hold of that picket here, his finger — his forefinger of his left hand — was pointing out directly towards the wire, wasn’t it ?
A. Yes.
Q. You don’t know whether his finger was in that position by reason of the fact that he didn’t close his finger from the wire, or by reason of the fact that he was pointing his finger at the wire?
A. Well, he never said anything, so I don’t know.
Q. You don’t know whether he was in fact pointing at the wire to see how close he could get to it without receiving a deadly shock, or not, do you ?
A. No, he didn’t say.”
The testimony shows that Carroll knew when he went with Hempe, that the latter was going to test the wire, to ascertain whether or not it wTas alive. The contemplated experiment recognizes the existence of a suspicion that the wire might possibly be charged with electricity, which misgiving is evidenced by Hempe’s desire to avoid personal injury by securing a dry stick and a green weed with which to make the required test. It will be remembered that the wire, at the point where Carroll grasped the top of the picket, wras about eight inches east of, and six inches above, his hand, and that he stood facing the east. The warnings he had received as to the dangerous condition of the wire and the suspicion .he entertained in respect thereto put him on his guard so that he must have seen the wire when he was looking in that direction, and it would seem that, as he did hot instantaneously receive
When Minnick in fastening the wire to the fence received a shock, George Hempe’s back was turned so that the latter could not say of his own knowledge whether the injury resulted from direct contact with the wire or by coming within the danger zone thereof, and, though Hempe told Carroll of such injury, the testimony does not show that Carroll had any greater knowledge of the cause of the hurt than Hempe possessed. It would seem reasonably to he implied, however, that Carroll was told that such injury w'as caused, not by contact with, but by approach to, the wire, for George Hempe testified that he informed him that Minnick put his hand out “towards” the wire.
Leonard Carroll entertained a suspicion as to the danger that' might result from contact with the broken wire, but he evidently did not know that, if it was “alive,” it was so heavily charged with electricity that death would ensue if he came within the hazard belt. As he had been warned, however, of the danger by Mr. and Mrs. Hempe, informed by their son George that Minnick received a shock that prostrated him by putting his hand up “towards” the wire, and knew that a test was to be made to ascertain whether or not electricity was present, thereby imputing a suspicion of its existence, we think the testimony shows that he voluntarily assumed a position of danger, the hazards of which ought to have been known by a person of his age and discretion.
The petition is therefore denied.
Affirmed : Rehearing Denied.